Anti-Rape Law (RA8353)

Petitioner also questions the charge filed against him by the prosecutor. Petitioner insists that a finger does not constitute an object or instrument in the contemplation of RA 8353.

Petitioner is mistaken. Under the present law on rape, Article 266-A of the Revised Penal Code, as amended by RA 8353, and as interpreted in People v. Soriano, the insertion of ones finger into the genital of another constitutes rape through sexual assault. Hence, the prosecutor did not err in charging petitioner with the crime of rape under Article 266-A, paragraph 2 of the Revised Penal Code.

People vs. Dahilig (GR 187083)

Clearly, the accused sexually abused AAA.

The question now is what crime has been committed? Is it Rape (Violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353), or is it Child Abuse, defined and penalized by Sec. 5, (b), R.A. No. 7610?

As elucidated by the RTC and the CA in their respective decisions, all the elements of both crimes are present in this case. The case of People v. Abay, however, is enlightening and instructional on this issue. It was stated in that case that if the victim is 12 years or older, the offender should be charged with either sexual abuse under Section 5(b) of R.A. No. 7610 or rape under Article 266-A (except paragraph 1[d]) of the Revised Penal Code. However, the offender cannot be accused of both crimes for the same act because his right against double jeopardy will be prejudiced. A person cannot be subjected twice to criminal liability for a single criminal act.

Accordingly, the accused can indeed be charged with either Rape or Child Abuse and be convicted therefor. Considering, however, that the information correctly charged the accused with rape in violation of Article 266-A par. 1 in relation to Article 266-B, 1st par. of the Revised Penal Code, as amended by R.A. No. 8353, and that he was convicted therefor, the CA should have merely affirmed the conviction.

People vs. Dollano, Jr (GR 188851)

It is significant to note that in Criminal Case Nos. 1381 and 1382 against AAA, the rape incidents occurred prior to the effectivity of RA 8353, or The Anti-Rape Law of 1997 which took effect on October 22, 1997 and classified the crime of rape as a crime against persons. Thus, we apply the old law and treat the acts of rape as private crimes. As provided in Article 344 of the RPC, for crimes of seduction, abduction, rape and acts of lasciviousness, pardon and marriage extinguish criminal liability.However, pardon should have been made prior to the institution of the criminal actions.

In this case, AAA gave her testimony in court during the presentation of the evidence for the prosecution. After the prosecution rested its case and during the presentation of the evidence for the defense, AAA again testified to tell the court that she lied when she first testified thereby recanting her previous testimony. Clearly, even if we consider the recantation as pardon on the part of the offended party in favor of appellant, the same cannot be appreciated for purposes of acquitting the accused as it was given definitely after the institution of the criminal action. Once the case is filed in court, control of the prosecution is removed from the offended party’s hands and any change of heart by the victim will not affect the states right to vindicate the atrocity committed against itself. It must be stressed that the true aggrieved party in a criminal prosecution is the People of the Philippines whose collective sense of morality, decency and justice has been outraged.

In Criminal Case Nos. 1387 and 1388, the rape incidents were committed when RA 8353 was already effective wherein rape was considered as a crime against person. The recantation became less significant.